Balaji Vusgwabatg Nabe vs The State Of Maharashtra
2015 Latest Caselaw 256 Bom

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                                                                                   Apeal-263-2009.sxw

Dond
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                           
                              CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL APPEAL NO. 263 OF 2009




                                                                   
       BALAJI VISHWANATH MANE
       aged 45 years, Occ: Service




                                                                  
       residing at T-24, P-106,
       Gautam Nagar, Dinquary Road,
       Behind Shivsena Shakha,
       Panjarapol Chowk, Trombay,
       Mumbai-400 088.                                                   ..Appellant




                                                           
                                                                       (Origi.Accused)
                         Vs.
                                          
       THE STATE OF MAHARASHTRA
                                         
       at the instance of Trombay Police
       Statiion, vide their C.R.No.190/06.                              ..Respondent

                                                     ----
             


       Smt. Nasreen S.K. Ayubi, Advocate appointed for the Appellant.
          



       Mrs. A.S. Pai, APP for the Respondent-State.
                                        -----

                                              CORAM:  SMT. V.K. TAHILRAMANI &





                                                         A.S. GADKARI, JJ.

Date: 1st September 2015.

Oral Judgment (Per Smt. V.K. Tahilramani, J.):

1 The appellant original accused has preferred this appeal

against the judgment and order dated 20th November 2008 passed by

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the learned Additional Sessions Judge, Greater Mumbai in S.C.

No.935 of 2006. By the said judgment and order, the learned

Sessions Judge convicted the appellant under Section 302 of the

Indian Penal Code and sentenced him to suffer R.I. for life and to pay

fine of Rs.1000/-, in default of payment of fine further R.I. for one

year.

2 The prosecution case can briefly be stated as under:

Deceased Kalpana @ Papabai Balaji Mane was the wife of

the appellant. They were married 20 years prior to the incident. They

had four children i.e. three sons and one daughter. The appellant

along with his wife and their children used to reside at Gautam

Nagar, Panjrapole, Mumbai. The appellant was addicted to liquor. On

12.6.2006, there was a function in the house of the appellant in

relation to his daughter Pooja. At about 3.30 p.m., Kalpana was

inside the house. Her children at that time were sitting outside the

house. At that time the appellant came in an intoxicated condition.

He abused Kalpana and stated beating her. Thereafter the appellant

poured kerosene on Kalpana and set her on fire. PW-1 Nagesh and

his friend Ramesh pushed open the door. They extinguished the fire.

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Thereafter they took Kalpana to Sion hospital. In the hospital

Kalpana gave two dying declarations. The first dying declaration was

recorded by PW-3 SEO Mrs. Nirmala Singh. The said dying

declaration is at Exhibit 12. The second dying declaration was

recorded by PW-8 API Ms. Nagin Kale. The said dying declaration is

at Exhibit-19. In both dying declarations Kalpana stated that her

husband poured kerosene on her person and set her on fire. PW-1

Nagesh lodged F.I.R. Thereafter the investigation commenced.

Kalpana expired on 13.6.2006 at about 7 a.m. Thereafter the said

offence was converted into Section 302 of the Indian Penal Code.

After completion of investigation, the chargesheet came to be filed.

3 Charge came to be framed against the appellant under

Section 302 of the Indian Penal Code. The appellant pleaded not

guilty to the said charge and claimed to be tried. The defence of the

appellant is that his wife Kalpana accidentally caught fire due to

which she died. After going through the evidence adduced in this

case, the learned Sessions Judge convicted and sentenced the

appellant as stated in para-1 above. Hence, this appeal.

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4 We have heard the learned Counsel for the appellant and

the learned APP for the State. We have carefully considered their

submissions, facts and circumstances of the case, judgment passed by

the learned Sessions Judge and the evidence in this case. After

carefully considering the matter, for the below mentioned reasons we

are of the opinion that the appellant poured kerosene on his wife

Kalpana and set her on fire.

5 At the outset, it may be stated that PW-1 Nagesh who is the

first informant in the present case and who is the son of the

appellant and deceased Kalpana, has turned hostile and has not

supported the prosecution. So also PW-4 Nagubai Pawar and PW-7

Ramesh who were relatives of the appellant have not supported the

prosecution. PW-5 Kausalya who is the neighbour of the appellant

and deceased Kalpana has also not supported the prosecution. In

order to prove that the appellant poured kerosene on his wife

Kalpana and set her on fire, the prosecution is mainly relying on the

evidence of PW-3 SEO Mrs. Nirmala and PW-8 API Kale. Both of

them recorded the dying declarations of Kalpana in Sion hospital. In

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both the dying declarations Kapana has stated that her husband i.e.

appellant has poured kerosene on her and set her on fire.

6 PW-3 SEO Mrs Nirmala Singh has stated that she was

appointed as Special Executive Officer in the year 2006. On

12.6.2006, she received telephone call from Trombay police station

at about 5.00 to 5.30 p.m. informing her that one lady with burn

injuries was admitted in Sion hospital and she should go there for

recording the statement of that lady. Mrs. Nirmala stated that

accordingly she went to Sion hospital. She asked Medical Officer

whether the said patient is in a position to give statement. The

Medical Officer stated that the patient was in a position to give a

statement. Mrs. Nirmala then asked the patient her name. The

patient gave her name as Papabai @ Kalpana Balaji Mane. On

enquiry, the patient gave her age as 40 years. On further enquiry the

patient stated that she had got married about 20 years prior to the

incident. Thereafter Mrs. Nirmala Singh asked the patient how many

children she had. Thereupon Kalpana stated she had four issues and

she resides at Panjarapole. On enquiry about how she sustained burn

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injuries, Kalpana stated to Mrs. Singh that there used to be frequent

quarrel between herself and her husband on money matters. Kalpana

further stated her that on the date of incident also there was a

quarrel and her husband poured kerosene on her person from the

kerosene container which was lying in the house and set her on fire.

This dying declaration is at Exhibit-12. Nothing has been elicited in

the cross-examination of this witness which would cause us to

disbelieve the testimony of SEO Mrs. Singh. Hence, we have no

hesitation in relying on the same.

7 The second dying declaration was recorded by PW-8 API

Kale. API Kale has stated that while she was on mobile vehicle, she

received telephone call from the police station that one lady had

sustained burn injuries and she should go to the hospital.

Accordingly, she went to Sion hospital. She located the said patient.

She saw the patient was under the examination of the doctor. She

asked the patient how the incident had occurred. The patient stated

to her that when she was inside the house, her husband on account

of some quarrel poured kerosene on her person and set her on fire.

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PSI Kale has stated that she recorded the dying declaration in the

presence of Medical Officer and she asked the Medical Officer

whether the patient was in proper condition to make a statement

and pursuant thereto the Medical Officer gave endorsement on the

statement. The endorsement on the statement shows that the patient

was in the condition to give a statement. This dying declaration is at

Exhibit 19 and the endorsement of PW-9 Dr. Jadhav on the dying

declaration is at Exhibit 19(A). Dr. Jadhav has stated that the patient

was admitted in the hospital at about 6.45 p.m.. At the time of

admission, the patient gave history of homicidal burns at 3.30 p.m.

Dr. Jadhav has further stated that police made enquiry with him

whether the patient was in a position to speak. Accordingly he gave

endorsement 19A which shows that the patient was in a position to

speak.

8 Thus it is seen that two dying declarations of Kalpana were

recorded i.e. the first dying declaration was recorded by PW-3 SEO

Mrs. Singh and second dying declaration was recorded by PW-8 API

Kale. Both the dying declarations are consistent. In both the dying

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declarations, Kalpana has stated that her husband poured kerosene

on her and set her on fire.

9 It is the prosecution case that the appellant poured

kerosene on Kalpana and set her on fire. This is supported by the

medical evidence and report of the Chemical Analyzer. PW-6 Dr.

Pathak conducted postmortem on the dead body of Kalpana. He has

stated that he found total 85% burns and cause of death was shock

due to 85% dermoepidermal burns. As stated earlier, the defence of

the appellant is that Kalpana had accidentally sustained burns.

However, the C.A. report shows that the clothes of Kalpana tested

positive for kerosene residues. If it was a case of accidental burns on

account of over flaming of stove, there would not be kerosene

residues on the clothes of deceased Kalpana. The alternate defence

put forward by the learned Counsel for the appellant is that Kalpana

sustained burn injuries due to bursting of stove. The spot

panchanama does not show any presence of stove which had burst.

Thus we find no substance in this defence.

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10 Thereafter the learned Counsel for the appellant submitted

that even if it is accepted that the act of the appellant of setting his

wife Kalpana on fire resulted in her death, the case would not fall

under Section 302 of the Indian Penal Code, but it would fall under

Section 304-Part-II or at the most Section 304 Part-I of IPC. She

pointed out that the evidence on record shows that a quarrel was

going on in between the appellant and his wife Kalpana which has

been deposed by PW-3 SEO Mrs. Nirmala Singh and PW-8 API Kale.

She has drawn our attention to the evidence of PW-3 SEO Mrs.

Nirmala Singh who has stated that she asked Kalpana how she

sustained burn injuries. Thereupon Kalpana told her that there used

to be frequent quarrels between herself and her husband. Kalpana

further told her that on the day of the incident there was such

quarrel. Her husband then poured kerosene on her person from the

kerosene container which was lying there and set her on fire.

Thereafter, Ms.Ayubi has drawn our attention to the evidence of PW-

8 API Kale. API Kale has stated that she asked Kalpana how the

incident occurred, whereupon Kalpana stated her that on account of

some quarrel her husband poured kerosene on her person from the

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kerosene container and set her on fire. Ms. Ayubi submitted that the

evidence on record shows that the act of the appellant was not pre-

meditated or preplanned, but it happened on the spur of the moment

in the heat of anger. She submitted that the fact that the incident

occurred during the course of a sudden quarrel and without any pre-

meditation on the part of the appellant would bring the case under

Exception 4 to Section 300 of IPC and would thus be covered by

Section 304 Part -II of IPC.

11 Considering the evidence on record, we are of the view

that Exception-4 to Section 300 of IPC applies to the facts of the

present case. However, we are not prepared to accede to the

submission of Ms. Ayubi that the case would fall under Section 304

Part-II of IPC. In our view, the case would fall under Section 304

Part-I of IPC because we are of the opinion that the appellant did not

just have the knowledge that his act is likely to cause death, but in

fact the appellant intended to cause the death of his wife Kalpana.

We say so on the basis of the act of the appellant and the extent of

the burn injuries sustained by Kalpana. The injuries as seen from the

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evidence of PW-6 Dr. Pathak are extensive in nature. Looking to all

these facts, we are of the considered opinion that the case cannot fall

under Section 304 Part-II of IPC.

12 We have already stated earlier that we are of the view that

Exception 4 to Section 300 applies to the facts of this case. In our

view, the appropriate conviction would be under Section 304 Part-I

of IPC. Hence, the conviction under Section 302 of the IPC is set

aside, instead, the appellant is convicted under Section 304 Part-I of

IPC. In our view custodial sentence of 10 years R.I. and fine of

Rs.1000/-, in default S.I. for 15 days, would meet the ends of justice.

Appeal is allowed to the aforesaid extent.

13 We quantify legal fees to be paid by the High Court Legal

Services Committee to Smt. Nasreen S.K. Ayubi at Rs.5000/- .

14 Office to communicate this order to the appellant who is in

jail.

(A.S. GADKARI, J.) (SMT. V.K. TAHILRAMANI, J.)

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CERTIFICATE

I certify that this judgment uploaded is a true and correct copy of

original signed judgment.